Judge: Cynthia A Freeland, Case: 37-2021-00032168-CU-PO-NC, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 20, 2024

06/21/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Discovery Hearing 37-2021-00032168-CU-PO-NC KIPP VS GRAY WEST CONSTRUCTION INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 02/07/2024

Defendant/Cross-Defendant Keen Concrete, LLC ('Keen Concrete')'s motion to compel Defendant/Cross-Complainant/Cross-Defendant Gray West, Inc. ('Gray West') to provide further responses to Requests for Production of Documents (Set One) (the 'Discovery Request') is granted.

A party upon whom a request for production of documents has been served must respond separately to each item propounded by one of the following: (1) an agreement to comply; (2) a representation of an inability to comply; or (3) objections to all or part of the demand. See Cal. Code Civ. P. § 2031.210(a). A statement of compliance must indicate that the production 'will be allowed in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.' Cal. Code Civ. P. § 2031.220. If a party responds by noting an inability to respond, the responding party must articulate that a diligent search and reasonable inquiry has been made in an effort to locate the item requested and must articulate the reason why the party cannot comply with the request as well as the names of, and contact information for, the individual(s) or entity(s) known or believed by the responding party to be in possession, custody, or control of item requested. See Cal. Code Civ. P. § 2031.230. If only part of an item or category of item is objectionable, the response must contain a statement of compliance, or a representation of an inability to comply with respect to the remainder of that item or category. See Cal. Code Civ. P. § 2031.240(a). If a responding party asserts an objection, the party must identify with particularity the specific document/evidence to which the objection is made and must set forth the specific ground for the objection. See Cal. Code Civ. P. § 2031.240(b).

California Code of Civil Procedure ('CCP') § 2031.310(a) provides that '[o]n receipt of a response to a demand for inspection, copying, testing, or sampling, the demanding party may move for an order compelling further response to the demand if the demanding party deems that any of the following apply: (1) A statement of compliance with the demand is incomplete[;] (2) A representation of inability to comply is inadequate, incomplete, or evasive[;] [or] (3) An objection in the response is without merit or too general.' Cal. Code Civ. P. §§ 2031.310(a)(1)-(3). The propounding party bears the burden of establishing good cause for demanding further responses under CCP § 2031.310(a). See Cal. Code Civ.

P. § 2031.310(b)(1). This requires a showing of: (1) the discovery request's relevance; and (2) specific facts justifying the discovery request. See Kirkland v. Sup. Ct. (2002) 95 Cal. App. 4th 92, 98; Glenfed Development Corp. v. Sup. Ct. (1997) 53 Cal. App. 4th 1113, 1117.

The evidence shows that on October 25, 2023, Keen Concrete served Gray West with the Discovery Request. See Nagashima Decl., ¶ 7; Keen Concrete's Appendix of Exhibits, Ex. D. On December 21, 2023, Gray West served its initial responses to the Discovery Request (the 'Initial Responses'). See Calendar No.: Event ID:  TENTATIVE RULINGS

3086255 CASE NUMBER: CASE TITLE:  KIPP VS GRAY WEST CONSTRUCTION INC [IMAGED]  37-2021-00032168-CU-PO-NC Nagashima Decl., ¶ 8; Keen Concrete's Appendix of Exhibits, Ex. E. Keen Concrete, by way of the pending motion, seeks further responses to RFP Nos. 3 and 4. RFP No. 3 asks Gray West to produce '[a]ll DOCUMENTS RELATED TO why Gary Severt no longer works for YOU.' RFP No. 4 asks Gray West to produce 'Gary Severt's employee file, including any and all DOCUMENTS RELATED TO Gary Severt's employment with YOU.' Gray West initially provided an identical response to RFP Nos. 3 and 4: Objection. Responding Party objects to the extent that this request is an invasion of third parties' right to privacy protected by the California Constitution. Board of Trustees of Leland Stanford Jr. Univ. v. Sup.Ct.

(Dong) (1981) 119 Cal. App. 3d 516, 528-530 (disapproved on other grounds by Williams v. Sup.Ct.

(Marshalls of CA, LLC) (2017) 3 Cal. 5th 531, 557 & fn. 8). Responding Party further objects to the extent this request seeks information that is irrelevant to the subject matter at issue and is not reasonably calculated to lead to the discovery of admissible evidence, thus it is unduly burdensome and harassing.

See Keen Concrete's Appendix of Exhibits, Ex. E.

The parties since have engaged in a robust meet and confer process. See Keen Concrete's Appendix of Exhibits, Ex. F; Chelsea Decl., Exs. 1-2; Nagashima Reply Decl., Ex. A. Those meet and confer efforts resulted in Gray West serving amended responses and documents responsive to RFP Nos. 3 and 4 on June 7, 2024 (collectively, the 'Amended Responses'). See Nagashima Reply Decl., Ex. B. Obviously service of the Amended Responses has changed the contours of the instant motion given that Keen Concrete has moved to compel further responses to the Initial Responses. Under California law, when amended discovery responses are served after a motion to compel is filed, the court has substantial discretion in deciding how to rule in light of the particular circumstances presented. See Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 408-409.

More specifically, the court has discretion to deny the motion to compel as moot, take the matter off calendar, order the parties to meet and confer on the amended responses, impose sanctions, or examine the responses to determine if they are Code-compliant. Ibid., at 409. In this instance, given that the parties appear to have substantially narrowed the scope of the pending dispute by way of their prior meet and confer efforts, the court will analyze the substance of the Amended Responses as set forth below.

Gray West, in its Amended Responses, has maintained the objections it asserted in its Initial Responses. Gray West's objections are not well taken. First, to the extent Gray West contends that producing the requested documents would be unduly burdensome and/or harassing, it was incumbent upon Gray West to provide evidence that the quantum of work required to respond would create an undue burden and that the ultimate effect of the request would be incommensurate with the result sought. See Williams v. Sup. Ct. (2017) 3 Cal. 5th 531, 549-50; West Pico Furniture Co. of Los Angeles v. Superior Court In and For the County of Los Angeles (1961) 56 Cal. 2d 407, 417. Gray West failed to make the requisite showing, particularly in light of the fact that Gray West, in fact, produced responsive documents as part of its Amended Responses.

Second, the court respectfully must disagree with Gray West that the requests are not relevant to the subject matter of this litigation and/or not reasonably calculated to lead to the discovery of admissible evidence. 'Unless otherwise limited by order of the court . . . any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved . . . if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.' Cal. Code Civ. P. § 2017.010. For discovery purposes, information is relevant if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement. See Gonzalez v. Sup. Ct. (City of San Fernando) (1995) 33 Cal. App. 4th 1539, 1546. Courts generally recognize that the right to discovery is broad, and disclosure is favored 'unless the request is clearly improper by virtue of well-established causes for denial.' Williams, 3 Cal. 5th at 541. An objection that the request is not relevant to the subject matter of the lawsuit may be a valid objection. See Cal. Code Civ. P. § 2017.010. Indeed, while the scope of discovery is broad, it is not limitless. Discovery that is not reasonably calculated to lead to the discovery of admissible evidence or is not helpful in preparing for Calendar No.: Event ID:  TENTATIVE RULINGS

3086255 CASE NUMBER: CASE TITLE:  KIPP VS GRAY WEST CONSTRUCTION INC [IMAGED]  37-2021-00032168-CU-PO-NC trial is not authorized. See Digital Music News LLC v. Sup. Ct. (2014) 226 Cal. App. 4th 216, 224. To determine whether discovery requested is reasonably calculated to lead to the discovery of admissible evidence, the court must look to the allegations in the operating pleading. See John B. v. Sup. Ct. (2006) 38 Cal. 4th 1177, 1206.

In this case, Plaintiffs Jason Kipp and Kristine Kipp (collectively, 'Plaintiffs') have filed a Complaint against Gray West, Gray, Inc. and Keen Concrete alleging causes of action for negligence and loss of consortium. See ROA No. 1. The Complaint alleges that Mr. Kipp is a machine operator at Jeld-Wen Windows & Doors ('Jeld-Wen'). Ibid., ¶ 8. On October 3, 2019, Gray West was performing renovations at Jeld-Wen when Mr. Kipp was injured by stepping into a hole from broken concrete and/or a raised defect in a concrete floor. Ibid., ¶¶ 9-10. The Complaint alleges that Gray West negligently maintained, and failed to warn others of the dangers of, the jobsite. Ibid., ¶¶ 11-12, 16. On May 3, 2023, Gray West filed a First Amended Cross-Complaint (the 'FACC') against Keen Concrete alleging causes of action for express indemnity, express duty to defend, equitable indemnity, contribution, declaratory relief (indemnity), implied indemnity, and comparative indemnity. See ROA No. 50. The gravamen of the FACC is that Keen Concrete was responsible for concrete patching work at the jobsite and that Keen Concrete owes Gray West a duty to defend and indemnify against Plaintiffs' claims pursuant to Keen Concrete's and Gray West's Subcontract Agreements. Keen Concrete, for its part, denies that it filled the spall and contends that it was not at the jobsite on the date of the incident. Keen Concrete, through discovery, has learned that Gray West's superintendent on the job, Gary Severt, was present at the project on October 3, 2019 but was laid off shortly thereafter. See Keen Concrete's Appendix of Exhibits, Exs. B, C. The court agrees with Keen Concrete that the documents establishing the reason(s) why Mr.

Severt no longer works for Gray West are relevant to the pending dispute. More specifically, the discovery goes to determining whether Keen Concrete was responsible for moving the cones near the concrete spall before Mr. Kipp's fall. On that basis, Gray West's contention that such information is not discoverable as it violates the subsequent remedial measure provision of California Evidence Code § 1151 is unavailing. As Keen Concrete aptly notes, it is not seeking this information to prove that Gray West was negligent in this matter; rather, Keen Concrete is attempting to establish that Keen Concrete was not negligent.

That being said, Gray West, to a certain extent, is correct that not everything in Mr. Severt's personnel file is discoverable because Mr. Severt has a right to privacy in such information. See International Federation of Professional & Technical Engineers, Local 21, AFL-CIO v. Sup. Ct. (2007) 42 Cal. 4th 319, 335 (the Civil Discovery Act recognizes a right to privacy in one's personnel files). However, it appears that the parties resolved this issue through meet and confer efforts that took place after Keen Concrete filed the pending motion, and that the parties have agreed that Gray West will produce the non-privileged, responsive documents contained within Mr. Severt's personnel file in conjunction with a privilege log. Keen Concrete, in its reply brief, does not dispute that such an agreement was reached. In fact, Keen Concrete does not even address RFP No. 4 in its reply. Consequently, Gray West must serve responsive documents and a privilege log, consistent with its statement of compliance, as to RFP No. 4 (to the extent Gray West has not already done so).

Keen Concrete, in its reply brief, nevertheless asks the court to issue a substantive ruling as to RFP No.

3. Specifically, Keen Concrete contends that the sole document Gray West produced in response to RFP No. 3 – a Termination Notice signed by Mr. Severt and Gray West – is not fully responsive to RFP No. 3. The court agrees. RFP No. 3 requests all documents related to why Mr. Severt is no longer employed by Gray West. However, Ms. Chelsea's June 7, 2024 email to Ms. Nagashima reveals that the Termination Notice was the only document in Mr. Severt's personnel file regrading his layoff. RFP No. 3 is not limited to documents in Mr. Severt's personnel file. Consequently, Gray West must serve a further amended response and all documents responsive to RFP No. 3.

The court must impose sanctions 'against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further response to a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.' See Cal. Code Civ. P. § 2031.310(h). The party subject to sanctions bears the burden Calendar No.: Event ID:  TENTATIVE RULINGS

3086255 CASE NUMBER: CASE TITLE:  KIPP VS GRAY WEST CONSTRUCTION INC [IMAGED]  37-2021-00032168-CU-PO-NC of proving that he or she acted with substantial justification. See Doe v. U.S. Swimming, Inc. (2011) 200 Cal. App. 4th 1424, 1435 (citing Cal. Evid. Code §§ 500 and 550; Kohan v. Cohan (1991) 229 Cal. App. 3d 967, 971). Substantial justification means justification that is clearly reasonable because it is well grounded in both law and fact. See Doe, 200 Cal. App. 4th at 1434 (citing Nader Automotive Group, LLC v. New Motor Vehicle Bd. (2009) 178 Cal. App. 4th 1478, 1480). In this case, Keen Concrete has not requested sanctions for prosecuting the pending motion, and the court finds that an imposition of sanctions is not warranted under the totality of the facts and circumstances.

In light of the foregoing, the court grants the motion and directs Gray West to serve further verified Code-compliant responses and documents responsive to RFP Nos. 3 and 4 within thirty (30) days of this hearing. The court does not award Keen Concrete sanctions as such an award is not warranted under the totality of the facts and circumstances.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 21, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 21, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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